“Advancing the health of our nations is a fundamental commitment we make to all our people,” said U.S. Secretary of Health and Human Services Kathleen Sibelius in representation of the Americas before the World Health Assembly in May 2013. She then added, “[a]s President Obama recently reminded us, access to health care is ‘not some earned privilege—it is a right.’ And that means we must work to ensure that everyone has access to the services they need.” The U.S. Constitution does not contain a right to health, and a deep-seeded political and philosophical debate on this issue has intensified with the passage of the Patient Protection and Affordable Care Act (ACA) in March 2010. While health care is largely perceived as a private commodity rather than a public good—and much less a human right—a right to health movement grows in the country and one-third of U.S. state constitutions make some reference to health and even recognize the government’s duty to protect health.
8 million people have enrolled in the health insurance exchanges. However, according to Kaiser Health Tracking Poll, the 46% of the public does not view the ACA favorably. The question is whether the law will eventually be able to change the American public’s perception of health from being a commodity to an entitlement. Granted, there still remain concerns over the law’s ability to cover the people who need health care coverage the most. However, the ACA offers the opportunity to rethink health as a nation and to begin to perceive it as a public good and a human right. By framing health in this manner, the U.S. would reach two interrelated outcomes: 1) the protection of populations that are the most marginalized in society (whether for social and/or economic reasons) who may place a greater economic burden on the health care system due to their inability to afford health insurance, and 2) greater health outcomes that can be achieved at the population level.
Health has been defined at the international level as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” under the WHO Constitution and the right to health as “the right to everyone to the enjoyment of the highest attainable standard of physical and mental health” under the International Covenant on Economic and Social Rights (ICESCR). The U.N. Committee on Economic, Social and Cultural Rights (CESCR), the body tasked with interpreting the ICESCR, has defined the content and scope of the right to health in a guiding document commonly known as “General Comment 14.” At the outset, the Committee establishes that “[h]ealth is a fundamental human right indispensable for the exercise of other human rights” and that “[e]very human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.”
The CESCR also outlines the four components of the right: accessibility, availability, acceptability, and quality. Accessibility refers to ensuring that “functioning public health and health care facilities, goods and services, as well as programmes, [are] available in sufficient quantity.” Accessibility requires that such facilities, goods, and services are made accessible in a non-discriminatory way and are not obstructed by physical, economic, or information-related barriers. Acceptability demands that they “be respectful of medical ethics and culturally appropriate.” Finally, quality requires that these facilities, goods, and services be of good quality and “be scientifically and medically appropriate.”
Many countries across the globe have codified a right to health in their national constitutions. In the Americas, 37% of constitutions guarantee a general right to public health to all their citizens and more than half guarantee a right to health care services. In the Middle East and North Africa, 42% of the countries constitutionally guarantee a general right to public health and 58% guarantee a right to health care services. Similarly, 55% of countries in Europe and Central Asia combined constitutionally guarantee a right to health care services.
Some constitutions go beyond establishing a right to health in general and abstract terms. For example, Brazil’s 1988 Constitution not only includes health as a fundamental human right, but also outlines the way that the right to health should be implemented. Article 196 establishes that “[h]ealth is the right of all persons and the duty of the State” and that it “shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recover.” Articles 198 through 200 describe the way that the Brazilian health system should function, including how it should be financed and the role of private sector in health.
Another notable example is South Africa. A number of its provisions concern some version or component of the right to health. Section 27(1) of the Constitution enshrines the right to access health care services, including reproductive health care in addition to sufficient food and water. Sub-section 2 establishes that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.” Sub-section 3 guarantees every individuals right to emergency medical treatment. Section 28(1)(c) enshrines every child’s right to basic medical services.
However, the lack of a constitutional right to health should not stand in the way of this process, as other countries with constitutions that do not enshrine a right to health have found creative ways to recognize one. Even where a right to health is not explicitly mentioned in the country’s constitution, countries have found a way of recognizing and interpreting it through other constitutional provisions—a promising approach for countries like the United States. India’s Constitution does not contain a right to health. However, Article 21, which enshrines the right to life, has become the provision through which a right to health has been interpreted. The Indian Supreme Court extended the right to life beyond its traditional scope in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors. (1981), concluding that:
“[t]he fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.”
The Court did not believe that the right to life should be limited to “mere animal existence” and held that “[t]he right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter.” Since then, a number of cases emerged interpreting a right to health within Article 21, such as Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996), where the Court ordered the government to compensate the petitioner for being denied emergency medical care at seven different hospitals following a train accident that left him with serious head injuries and a brain haemorrhage. The Court considered that the “[provision of] adequate medical facilities for the people is an essential part of the obligations undertaken by the Government” and that the “[f]ailure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.” A year later, in State of Punjab v. Mohinder Singh Chawla, the Court assertively concluded “it is now settled law that right to health is integral to right to life.”
Costa Rica is yet another example of a country whose constitution does not provide for a right to health but overtime has gone from denying a right to health to recognizing it as a fundamental human right. Much like India, the Supreme Court of Costa Rica has derived the right to health from other constitutional rights: the right to life (Article 21) and the right to social security protection (Article 73).
The political opposition to the ACA has been strong, and Secretary Sibelius was harshly criticized by Michael Tennant from The New American for declaring health a right that should be guaranteed by national governments. Tennant claims that the right to health is “clearly…not a right in the sense of ‘life, liberty, and the pursuit of happiness’ — rights that every person can exercise without imposing on others.” He calls countries that treat health as a right “foolish.” He claims that “healthcare and coverage are plainly no business of the federal government” and that “nothing in the U.S. Constitution authorizes the federal government to be involved in healthcare or health insurance in any way, shape, or form.”
However, health is integral to a person’s ability to not only enjoy the rights of life, liberty, and the pursuit of happiness (rights recognized under the U.S. Declaration of Independence), but to also contribute to the welfare of the nation. A sickly workforce cannot drive a country forward. This simple reality should be enough to foster an interest in the federal government and state governments to recognize a right to health and to ensure its protection at the individual and population levels.
Interestingly, even with so much opposition to the ACA, history demonstrates that not even the U.S. could deny the importance of health and government’s role to protect it. Congress has passed a number of laws that advance health, including Medicaid, Medicare, and the Children’s Health Insurance Program, and “establish and define statutory rights of individuals to receive medical services from the government.” In addition to spearheading the Social Security Act of 1935 in the interest of vulnerable populations, which later led to the creation of Medicaid and Medicare in 1965, President Franklin Delano Roosevelt proposed a “Second Bill of Rights,” which would include the “[t]he right to adequate medical care and the opportunity to achieve and enjoy good health.” With Eleanor Roosevelt as the chair of the Human Rights Commission, the U.S. also played a critical role in the drafting of the Universal Declaration of Human Rights (UDHR), the cornerstone of international human rights law. Under Article 25, it recognizes the “right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
It was not until the administrations of Presidents Ronald Reagan and George H.W. Bush that economic and social rights were stripped of their human rights status in the United States—an view that continues to be present in public opinion. Still, some efforts have been made to counterbalance the retrogression and move forward. President Bill Clinton pushed the Senate to ratify the ICESCR, although unsuccessfully. In 2011, Representative Jesse L. Jackson Jr. introduced a bill that proposes to amend U.S. Constitution to include “the right to health care of equal high quality.”
Finally, there is the ACA. With its objective of expanding access to health care, the ACA invites an opportunity to reconceptualize health as a human right, even if the United States has still not ratified the ICESCR and even though the ACA is neither a human rights instrument nor contains any human rights language. The U.S. does suffer from a long history of failed attempts to reform the health care system in the hope of providing universal access to health care, but because the passage of the ACA is a step in the right direction in and of itself towards improving the health of millions of Americans, it is time to move away from outdated political views that have kept the country from fully appreciating the importance of health to the life of the individual and in the interest of ensuring a healthy population.
Tags: ACA access to health care CESCR global health health and human rights health care health coverage health equity health reform health services HHS ICESCR Obama Obamacare poverty president obama public health right to health Sebelius United States World Health Assembly World Health Organization
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.